Considered and decided by Willis,
Presiding Judge; Toussaint, Chief
Judge; and Schumacher, Judge.

S Y L L A B U S

An upward
durational departure under the Minnesota Sentencing Guidelines may not be based
on an "admission" by the defendant, under Blakely v. Washington,
124 S. Ct. 2531 (2004), unless the "admission" to an aggravating
factor is accompanied by the defendant's waiver of his or her right to a jury
trial on the aggravating factor.

O P I N I O N

ROBERT H. SCHUMACHER, Judge

The supreme court has
remanded Charles Conrad Hagen's appeal from his sentence for first-degree
criminal sexual conduct following this court's affirmance of the sentence after
the first remand. See State v. Hagen,
679 N.W.2d 739 (Minn. App. 2004), opinion vacated and remanded (Minn.
July 20, 2004). We conclude the upward
sentencing departure violates Hagen's right to a jury trial under Blakely. We reverse and remand for resentencing
consistent with Blakely.

FACTS

Hagen pleaded guilty in March 2002 to
first-degree criminal sexual conduct committed against 13-year-old J.N., an
autistic girl who lived in the house in which Hagen rented an apartment. The complaint charged a single count under
Minn. Stat. § 609.342, subd. 1(g), which requires that the offender
engaged in sexual penetration with a victim under the age of 16 with whom he
had a "significant relationship."

The plea agreement, as
outlined in the Rule 15 plea petition, provided that Hagen would plead guilty
to the offense as charged, and be able to "argue down[ward] departure
based on amenability to probation."
Hagen pleaded guilty on the date set for trial. The prosecutor pointed out there was no
agreement as to sentence. It was
understood that the district court would be "open" to considering a
departure, depending on the results of the presentence investigation. In the guilty plea hearing, Hagen admitted
that he sexually penetrated 13-year-old J.N.
Hagen testified that his attorney had discussed with him the
"significant relationship" element, which was based on his living in
the "same residence" as the victim.

At sentencing, Hagen's
attorney admitted that there were some "very aggravating factors,"
and stated that Hagen "does not deny that." Counsel then referred to "some issues about violence,"
apparently referring to some aspect of the offense. When Hagen exercised his right of allocution, he acknowledged
that his crime would have longstanding effects on the victim.

The district court characterized this case as
"one of the more horrendous cases of child sexual abuse that I have
seen." The court sentenced Hagen to 216 months, an upward departure from
the presumptive sentence of 144 months. In support of the departure, the court
stated:

The basis for the departure is that you entered the
victim's zone of privacy, that being that this took place in her home, and
outside of the home for that matter; that it created great psychological and
emotional trauma to the victim in this case; and, most importantly, that this child
was particularly vulnerable due to her
many disabilities.

The court concluded that these factors, along with "the deception
that [Hagen] engaged in," supported the departure.

This
court's first initial opinion rejected Hagen's challenge to his guilty plea,
holding that Hagen, who rented an apartment in the basement of the house where
the victim lived with her mother, did live in the same "dwelling" as
the victim. State v. Hagen, No.
C0-02-1318, 2003 WL 21006136 at *2-*3 (Minn.
App. May 6, 2003). The second opinion
concluded that violation of the zone of privacy was not a proper aggravating
factor, but that the victim's severe psychological trauma and her particular
vulnerability due to numerous disabilities supported the 50% upward departure. State v. Hagen, 679 N.W.2d 739,
741-43 (Minn. App. 2004), opinion vacated and remanded (Minn. July 20,
2004). The supreme court has remanded
for reconsideration of the sentence imposed in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004).

ISSUE

Does the upward
durational departure violate Hagen's Sixth Amendment right to a jury trial
under Blakely?

ANALYSIS

The
decision to depart from the presumptive sentence rests within the discretion of
the district court and will not be disturbed absent a clear abuse of
discretion. State v. Givens, 544
N.W.2d 774, 776 (Minn. 1996). But the Blakely
argument presents a constitutional issue, which this court reviews de
novo. See generally State v. Manning,
532 N.W.2d 244, 247 (Minn. App. 1995), review denied (Minn. July 20,
1995).

In Blakely,
the Supreme Court stated that the greatest sentence a judge can impose is
"the maximum sentence [that may be imposed] solely on the basis of the
facts reflected in the jury verdict or admitted by the defendant." Blakely v. Washington, 124 S. Ct.
2531, 2537 (2004). The defendant has a
Sixth Amendment right to a jury determination of the existence beyond a
reasonable doubt of any fact, except the fact of a prior conviction, that
increases the sentence above this maximum.
Id. at 2543; Apprendi v.
New Jersey, 530 U.S. 466, 490, 120
S. Ct. 2348, 2362-63 (2000). The
Court therefore reversed the 90-month "exceptional sentence" that had
been imposed under Washington state's determinate sentencing scheme and
remanded "for further proceedings not inconsistent with this
opinion." Blakely, 124 S.
Ct. at 2543.

This court has
held that Blakely does apply in Minnesota to preclude upward durational
departures under the sentencing guidelines based on aggravating factors as
found by the sentencing court rather than the jury. State v. Conger, 687 N.W.2d 639 (Minn. App. 2004), pet.
for review filed (Minn. Nov. 10, 2004). But the state argues that
Hagen is not entitled to relief under Blakely because he
admitted to the aggravating factors found by the district court.

The Blakely Court held that
the "statutory maximum" sentence "for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected
in the jury verdict or admitted by the defendant." 124 S. Ct. at 2537. The Court did not explain the sentencing
court's authority to sentence based on the defendant's admissions, nor did it
attempt to define when an aggravating factor is "admitted" by the
defendant.

The "admission exception" was not
at issue in Blakely and was only briefly discussed in Apprendi, in which the defendant specifically denied his offense was motivated by
bias, the factor that enhanced his sentence.
SeeApprendi,
530 U.S. at 471, 120 S. Ct. at 2352 (noting the defendant's denial he was
biased against African-Americans). But
the Apprendi Court did note that the defendant's admission had been a
factor in an earlier case holding that due process was not violated by making
recidivism a sentencing factor rather than an element of the offense. Id.
at 488, 120 S. Ct. at 2361-62 (discussing Almendarez-Torres v. United States,
523 U.S. 224, 247-48, 118 S. Ct. 1219, 1233 (1998)).

Unfortunately,
none of these Supreme Court cases – Blakely, Apprendi, and Almendarez-Torres
– discusses what would qualify as an "admission" satisfying this
exception to the Sixth Amendment jury-trial right. The state argues that defense counsel's admission that there were
"very aggravating factors" and Hagen's admission that his crime would
have longstanding effects on the victim satisfy the "admission
exception" to Blakely. We
must resort to law outside the Apprendi line of cases to analyze this
issue.

The effect of a
defendant's admission to an aggravating factor is to waive the defendant's
constitutional right to a jury trial on the sentencing issue. The general rule is that the waiver of a
constitutional right must be knowing, voluntary, and intelligent. See generally State v. Trott, 338
N.W.2d 248, 251 (Minn. 1983) (discussing requirements of guilty plea). The waiver of a constitutional right, at
least one that impacts the fairness of the trial itself, must be a
"knowing and intelligent relinquishment or abandonment of a known right or
privilege." Edwards v. Arizona,
451 U.S. 477, 482, 101 S. Ct. 1880, 1884 (1981) (discussing waiver of right to
counsel before questioning). Other
constitutional rights may be "waived" without actual knowledge of the
right involved, although that knowledge may be a factor in the voluntariness of
the waiver. See Schneckloth v.
Bustamonte, 412 U.S. 218, 236-44, 93 S. Ct. 2041, 2052-56 (1972); State
v. Dezso, 512 N.W.2d 877, 881 (Minn. 1994) (noting police advisory on right
to refuse consent to search is only one factor in determining voluntariness of
consent). A waiver of the right to a
jury trial has been held to require a defendant have knowledge of that
right. State v. Ross, 472 N.W.2d
651, 653 (Minn. 1991); State v.
Pietraszewski, 283 N.W.2d 887, 890 (Minn. 1979).

Hagen pleaded
guilty to first-degree criminal sexual conduct. In the course of the guilty-plea hearing, Hagen was informed in
general terms of his right to a jury trial "and that all jurors would have
to find you guilty to have you pronounced guilty." But he was not informed that he had a right
to a jury determination on any fact used to support an upward sentencing
departure.

The aggravating
factors cited by the district court – invasion of the victim's zone of privacy,
victim vulnerability, and psychological impact on the victim – may not have
been contested by the defense. But in State
v. Wright, 679 N.W.2d 186 (Minn. App. 2004), review denied (Minn.
June 29, 2004), this court held that a defendant's stipulation to an element of
an offense must be supported by a personal oral or written waiver of the
defendant's right to a jury trial on that element. Thus, stipulations to facts constituting elements of the offense
may no longer be accepted as effective but informal waivers of the jury-trial
right without a full-scale, on-the-record oral or written waiver. Cf. State v. Berkelman, 355 N.W.2d
394, 397 (Minn. 1984) (noting that defendant "in effect offered" to
waive jury trial on element of prior DWI conviction within five years by
agreeing to stipulate to that fact).

In this regard, we
find no basis to distinguish a stipulation to an aggravating sentencing factor
from a stipulation to an element of the offense. The Blakely Court has effectively dismantled the
distinction between offense elements and sentencing factors. See Blakely, 124 S. Ct. at 2539
(stating that Apprendi assures that "the judge's authority to
sentence derives wholly from the jury's verdict"). The opinion calls into question any
legislative labeling of certain facts as "sentencing factors." Id.
Therefore, we cannot conclude that Blakely leaves a defendant
free to stipulate to a "sentencing factor" without complying with the
requirements pronounced in Wright for waiver of a jury trial on an element of
the offense.

This court in Conger noted that any
upward durational departure not based solely on the facts admitted by the
defendant in the guilty plea was invalid.
687 N.W.2d at 645. But because
the district court had made no findings to support the particular-vulnerability
and particular-cruelty factors, the court in Conger did not discuss the
need for a Blakely admission to an aggravating factor to be
accompanied by a waiver of the right to a jury trial on that issue. See
id. And we note that the state in Conger did not argue in
its brief that the defendant's statements in the guilty-plea hearing constituted
an "admission" under Blakely. See generally State v. Soukup, 656 N.W.2d 424, 431 (Minn. App. 2003)
(describing "dictum" as statement concerning issue not addressed in
adversarial briefing and argument).

Here, the state argues in its brief that Hagen's
statements constituted an "admission" under Blakely. And the district court's
reliance on the victim's vulnerabilities was supported by reference to her
"many disabilities," which in turn referred to the victim-impact
statement detailing the victim's ADHD and her autism. That statement graphically detailed the psychological and
emotional impact on the victim. Thus,
there is no doubt in this case that the record amply supports the district
court's finding on the aggravating factors, and the adequacy of Hagen's
admissions, therefore, must be addressed.
We note also that Hagen's only personal admission was made at
sentencing, whereas the defendant in Conger made his admissions at the guilty-plea
hearing, at the same time he waived his jury-trial right. See
generally State v. Lyle, 409
N.W.2d 549, 552-53 (Minn. App. 1987) (holding that factual basis had to be
established at time of guilty plea, not later in presentence investigation).

Because Hagen's
sentence violated his right to a jury trial under Blakely, the sentence must be reversed and remanded. We note that in Blakely, the Court did not remand for imposition of a sentence
within the "standard range" under Washington law, but instead
remanded "for further proceedings not inconsistent with this opinion." 124 S. Ct. at 2543. We agree with the state's argument that
Hagen is not automatically entitled on remand to a reduction of his sentence to
the presumptive sentence. But the
appropriate remedy, including the possible impaneling of a jury to determine
the sentencing issues, has not been fully litigated here and must be determined
in the first instance by the district court.

D E C I S I O N

The
upward durational departure violated Hagen's right to a jury trial under Blakely. The matter is remanded for resentencing in
light of Blakely.